The Volokh Conspiracy

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Endangered species

A Bee May Be A Fish (At Least in California) [Updated]

A state court rules that bumble bees may qualify as "fish" under the California Endangered Species Act


Concerned for the plight of bumble bees, environmental organizations petitioned the California Fish and Game Commission to list four bumble bee species–the western bumble bee, Franklin's bumble bee, Crotch's bumble bee and the Suckley cuckoo bumble bee–as "endangered" under the California Endangered Species Act (CESA). There was only one problem: The CESA provides for protection of "native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct." Notice anything missing? There is no mention of insects, or even invertebrates, let alone bees.

Concerned about the potential economic impact of listing bumble bees as "endangered species," various agricultural groups sued to stop the Commission from listing the bees, arguing that the Commission lacks the authority to list bumble bees (or other insects) as "endangered" under the the CESA. A trial court initially agreed with the agricultural groups. Today, however, an appellate court sided with the environmental groups, concluding that bumble bees could be "endangered species" under the CESA because they qualify under the Act's definition of "fish."

In Almond Alliance of California v. Fish and Game Commission, the court concluded that "[a]lthough the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 [of the CESA] is not so limited." Because the definition of "fish" includes invertebrates, the court concluded, and bees are invertebrates (albeit not of the aquatic kind), bees are covered by the CESA. This interpretation, the court argued, was also consistent with prior case law adopting an expansive definition of the CESA's provisions and the statute's purpose and legislative history.

From the opinion:

We conclude a liberal interpretation of the Act, supported by the legislative history and the express language in section 2067 that a terrestrial mollusk and invertebrate is a threatened species (express language we cannot ignore), is that fish defined in section 45, as a term of art, is not limited solely to aquatic species. Accordingly, a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under the Act. . . .

Reading the opinion reminded me of me of why I considered using this case in my Legislation and Regulation exam (though some of the technical detail also reminded my why I ultimately chose to take a different course).

More from the opinion:

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list. In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature's approval of the Commission's listing of a terrestrial mollusk and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein. We thus decline to apply the statutory interpretation canon here.

So while bees are generally not considered to be a type of fish, they qualify as such under California law (at least under this one court opinion).

UPDATE: Ilya has some thoughts on the opinion here.

I also strongly recommend this thread by Lawrence Solum on the court's use of "Semantic availability" to reach its conclusion that the CESA's definition of "fish" includes terrestrial invertebrates such as bumble bees.

Among other things, Solum observes that the CESA (like the federal Endangered Species Act) uses a stipulated definition to define a term (in this case, "fish") to include more than the term would normally be understood to cover. So "fish" includes more than just fish under the CESA, just as the term "species" in the federal ESA is defined to include more than just species (specifically, subspecies and distinct populations). [Also, the federal ESA defines "endangered species" to exclude "species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man."]

The question, of course, is how far the new definition extends. As Rick Hills notes, Justice Scalia had a thought on this question in his Sweet Home dissent: "The tempting fallacy…is to assume that once defined, [the defined term] loses any significance, and it is only the definition that matters." Thus the court here interprets the broadened definition of fish to include non-aquatic species, even though most interpreters would recognize the text of the language as substituting a colloquial understanding ("fish" are those animals that live in water) for a technical one. The court justifies this move by invoking the CESA's purpose. Like Ilya, I am not convinced.

SECOND UPDATE: Maybe this opinion is simply more evidence that fish is an indistinct category.